Is the democratic deficit of the European Union structural ?

What is the likely lifespan of a European construction which is in the process of dismantling the democratic regimes in its Member States while failing at its task of forming a substitute democracy, and not even achieving the bare minimum of providing a common identity for its 28 or so constituent peoples? A crisis of legitimacy and a crisis of identity: these are what Europe will need to tackle first if it is to continue embodying the common future of its Member States and citizens.

by Dr Christophe Beaudouin

Europe is the birthplace of democracy ; has it now become its grave ? Now that Europe has achieved political unification, the question is whether this will result in a simple change in the scale of democracy, from the national level to the supranational level, or whether democracy will instead undergo a metamorphosis into a new form. As a community of states under the rule of law and a non-violent gathering of constitutional democracies, the European Union is a regime without historical precedent, and is often portrayed as a large-scale legal and cosmopolitan democracy. Yet the democratic states which voluntarily came together in this Union, ceding to it part of their sovereignty, have in the process abandoned the democratic standards based on universal suffrage which they had achieved at national level. There has not yet been any compensation at European level for this loss of legitimacy. The transnationalisation of popular sovereignty has failed.

The central question in all of these debates is as follows: what is the likely lifespan of a European construction which is in the process of dismantling the democratic regimes in its Member States while failing at its task of forming a substitute democracy, and not even achieving the bare minimum of providing a common identity for its 28 or so constituent peoples? A crisis of legitimacy and a crisis of identity: these are what Europe will need to tackle first if it is to continue embodying the common future of its Member States and citizens. This is precisely what the Karlsruhe court seeks to bring to our attention with the criticisms it regularly levels at the structural deficit of the European demos, and it is common knowledge that the EU Member States will soon be unable to continue using the mantle of their own legitimacy to cover up the heteronomous determination of their acts and actions.

At the risk of disconcerting some of our audience, we must therefore acknowledge the extent to which sovereign state powers have been neutralised, analyse the move from the political to the prescriptive, understand what distinguishes a living democracy from court-stipulated citizenship or a democracy based on the rights of individuals from a people’s democracy, gauge the difference between lobbying and expert assessments on the one hand and democratic representation on the other, reflect on the indifference of the European courts to political considerations and observe the scale on which competences are being transferred, given that sovereignty and democracy require substance as well as power.

The demands inherent to political representation and legal classification can no longer be met by describing the European Union as an ‘unidentified political object’ or a new European order located somewhere between the sovereign states and the international organisations, or by referring to it as a ‘sui generis construction’. Yet it is far from certain that the desire to move away from these theoretical ambiguities is widely held at European level. In principle, good governance which was initiated and scrutinised by elders, experts and judges could prove to be a vehicle for a new form of technical and legal legitimacy, removed from the vagaries of politics and the inconsistencies of the sovereign peoples, even if this would necessarily result in a distancing from the democratic requirements incumbent upon all European states. What would gradually emerge would be a new state-like legal order reminiscent of a novel type of European empire, where temporal power was exercised by the European Union under the spiritual control of the European Court of Human Rights et EU Court of Justice.

In reality, what we are facing is something other than a simple ‘democratic deficit’. The European doctrine uses this deceptive term, repeated like an incantation, by way of a negative which proves the democratic legitimacy of the EU and its legislation to be an undisputed fact: conceding a fault in something confirms its very existence. After all, a ‘deficit’ can be overcome. In the case at hand, we hear heartfelt entreaties calling for solutions to the system’s ‘deficit’ of legitimacy, which generally involve accelerating the drive for unification and transferring competences to technocratic bodies. Yet a closer look at this ‘deficit’ rapidly reveals the huge democratic abyss which has opened up during the process of integration as a result of the disease which has riddled the European construction right from the start and which is now gradually dismantling not only the national sovereign powers but also all notions of political sovereignty. This disease is depriving the European postestas of the legitimacy which an auctoritas should confer upon it.

The political criteria for accession laid down by the European Council of Copenhagen in 1993 and in the Treaties can be used to identify and summarise a number of criteria that must be met by a democratic state under the rule of European law. The main outcomes of previous analyses suggest that there are seven constitutional criteria which form a basis for assessments of the European legal and political system, given that they were themselves originally established by the European Union and its Member States. It goes without saying that these seven criteria are non-exhaustive[1]; instead, they represent a democratic constitutional minimum. It is also worth noting that they are not just complementary, but also interdependent and equivalent: 1) the primacy of law, 2) the separation of powers, 3) institutional stability, 4) the equal representation of citizens, 5) political responsibility, 6) the transparency of power and 7) constitutional neutrality.

1)A hierarchy of law?

Along with the principle of the separation of powers, a hierarchy of law is the main requirement for a state under the rule of law, if not to say its very definition[2]. Yet what remains of this hierarchy of legislation, which provides crucial protection against the continually tempting abuse of power, in a legal order where no one is sure which legislation take precedence, and where national legislation, even that mandated by the constitution, is systematically neutralised by European legislation – secondary as well as primary – by virtue of the constitution itself? What remains of the primacy of law as a guarantee against arbitrary decisions in a legal order headed by a Court which amends the Treaty in freely taken decisions which cannot be appealed? What remains of the primacy of law and hence of the rule of law following the transnational reorganisation of state powers in Europe, which has overturned state structures and the locations, conditions and procedures of lawmaking? Which version of the interrelation between the European and national legal systems should we choose: that laid down in Luxembourg, Karlsruhe, Rome or Paris? Can monism officially coexist with dualism? The move from a pyramid to a network, from a state under the rule of national law to a European integration movement has resulted in the wholesale relativisation of the hierarchy of legislation, in such a way that nobody talks any more about primacy and sovereignty within the hierarchy; instead, functional issues of coordination and adjustment are debated on a case-by-case basis.

The EU is a legal system where legislation is the preferred instrument of economic and legal integration, but where the cart horses of lawmaking – the ECJ and the European Commission – hold powers which are unchecked by any genuinely supreme or basic law which only the constituent sovereign states could amend, and even then with ‘a trembling hand’ (Montesquieu). Although the European system was built on laws, it has not become a true ‘Union under the rule of law’ by analogy to a state under the rule of law since it has dismantled the legislative hierarchy which would have made this possible and effectively overthrown the constitutions enacted by the sovereign states, and is furthermore subject to legal uncertainty due in particular to the fact that its Treaties are at the mercy of a praetorian jurisprudence.

Finally, we cannot forget another consequence of this new method of lawmaking for states under the rule of law. The proliferation of European and international legislation places obligations on national legislators and courts as well as taking precedence over national law and having immediate impacts on individuals. The Member States are legally accountable to the Commission and ultimately the Court of Justice in this respect for transposing and properly enforcing EU legislation within their territories. The explosion and technicality of this legislation have to some extent changed the nature of the laws which underpin the rule of law. Transnational laws have more or less the same material properties as conventional legislation: they are rational, imperative, stable, generalised, intelligible, prudent and of high quality, with the aim of implementing certain values such as freedom, equality or security. These new lawmaking procedures which take place outside the unique confines of the sovereign state, or in other words without any political intervention, and which promote legal deregulation, mean that this process of legislative denaturation is speeding up. It results in the increasing power of ‘soft’ or ‘fuzzy’ law (communications, guidelines, resolutions), of technical standardisation (quality standards and certification), and of laws which no longer result from deliberations (a search for the general interest) but from negotiations (a transaction between individual interests). The end effect is the gradual replacement of imperative, perpetual, clear, generalised and prudent legislation by negotiated laws or laws whose application can be constantly expanded, which are experimental and which often give way to confusion, technical specialisation, inflation and prolixity. Cut off from its bedrock of policy making in a democratic state, European and global legislation is an excellent example of the metamorphosis of contemporary law, and even accelerates this phenomenon. It has reached the point where we could be forgiven for asking whether there is still any such thing as real legislation, or whether its disintegration – Professor Jean Carbonnier referred to its ‘pulverisation into subjective rights’ – has placed society in a state of anomie. How then can we uphold the feeling of legitimacy and its corollary, public consent to obedience?

2)A separation of powers?

There can be no constitution or rule of law without the guarantee of a real separation of powers. The wholesale redistribution of power that goes along with supranational integration is overturning constitutional equilibriums which to date have guaranteed a certain distinction between the three powers in a democratic state and placed mutual limits upon them. The new configuration, born as it is of integration, no longer ensures the separation of powers as protection against the inevitable temptation of arbitrary decision-making. Quite the reverse is true, and the EU is subject to major functional confusions.

To begin with, the role of co-legislator held by the government representatives within the Council entails the exercise of almost all legislative functions. In several European countries this role is fulfilled at the expense of parliaments which have already been radically slimmed down, deprived of any real control over what their ministers get up to in Europe (as provided by the negotiating mandate issued by the Danish parliament, for example) and spend more than a third of their time transposing directives. Almost 70 % of these directives are transposed by means of regulations, not to mention the European regulations which need no transposition, and all of these texts are entirely beyond the reach of national parliaments.

There is also a general blurring within the EU itself between state-like functions and the old constitutional equilibriums, compounded by multiple uncertainties over who plays which role: the Member States hold both a legislative role within the Council (which itself has suffered from the transfer of powers to the Commission) and an executive role; the European Commission holds a legislative role (a monopoly of initiative and dominant influence over the entire process), an executive role (comitology), a jurisdictional role (competition) and a repressive role; the Court of Justice, whose teleological jurisprudence is never opposed, has brought back to life the figure of the legislating and constitution-writing judge.

3)Institutional stability?

‘Stable institutions’ are a precondition for the good democratic functioning of a state, and they feature among the primary political criteria which the EU adopted in Copenhagen and demanded that states meet before they could become candidate countries and open accession negotiations. The very institutional framework of the EU is characterised by chronic instability: there have been no fewer than six main Treaties which have amended the Treaty of Rome, from the Single Act of 1986 to the Treaty on Stability, Coordination and Governance of 2012, or in other words an institutional reform (and in some cases a genuine recasting) every four and a half years on average. These half a dozen reforms of primary Community legislation have required a whole cascade of constitutional amendments in countries with written constitutions. The problem is compounded by the enlargement treaties, which did not fundamentally alter the institutional structure of the EU but did of course redefine its dimensions and sometimes its procedures following two waves of accession of 12 new Member States in 2004 and 2006.

The institutional instability of the EU is even enshrined in the Treaties in the fifteen bridging clauses and the flexibility clause, which can be put to very productive use to expand yet further the competences of the EU in federal or co-decision matters, without any consultation of the national parliaments. Reference must again be made to the creative jurisprudence of the Luxembourg court as a permanent factor in these institutional developments, given that it has never hesitated to give preference to the ‘spirit’ of the Treaties in its interpretations and to go beyond or even against their letter, with little regard for the real intentions of the authors who discovered only in hindsight the extent of the provisions to which they had signed their names. Subsequent Treaties have at any rate invariably lent implicit or explicit validation to all of the Luxembourg court’s teleological attacks on what remains of the ramparts of state sovereignty. As soon as each of these stages has been reached, it serves to confer a posteriori legitimacy on the power which has been snatched or conceded, before leading to new demands as per the renowned spillover effect.

The continual institutional evolution of primary EU legislation is neither an anomaly nor a surprise: it is an integral part of integration, which by its very nature is dynamic and non-static. An integrated Europe is an object defined by its own movement. It is not an institutional whole which has reached an organic conclusion or which at least has a clear end in sight, and neither is it a simple stage on the path between a state-based and a global legal system: it is the ‘process of creating an ever closer union among the peoples of Europe’ (Article 1(2) TEU), a process which is still unfinished and which is breaking down the old hierarchies. It accelerates and slows down abruptly on the back of ‘crises’ used to justify new federal ‘advances’, under the enlightened impetus of Luxembourg’s ultra vires jurisprudence. It would be clearly ludicrous to expect institutional stability or legal security in a structure whose economic, political and genetic programming is based on perpetual movement.

[1] Cf. the writings of the American political scientist Robert A. Dahl, who identified five criteria that must be met by a democratic system: equality for citizens, effective participation, enlightened understanding among voters of the challenges, control of the political agenda and inclusiveness. In order to meet these criteria, seven conditions must be in place: the election of competent politicians, free and fair elections, inclusive suffrage (transparency of the system and access to polling stations), the freedom to stand for election, freedom of expression, access to a plurality of information and opinions and freedom of association (R. Dahl, On Democracy, Yale University Press, 1998).

[2] Kelsen defined a ‘state under the rule of law’ as a ‘state in which legal norms form a hierarchy in such a way that its power is limited’ (H. Kelsen, Théorie pure du droit [The Pure Theory of Law], 2nd ed, [French version], translator C. Eisenmann, Dalloz, 1962, p. 266.)

4)An equal representation of citizens?

The principle of fair representation for the citizens who make up the body politic, which confers the label of ‘representativeness’ on a government, is a key criterion for democratic functioning, enshrined in and guaranteed by the constitutions. The ‘representative democracy’ upon which the EU claims to base its activities (Article 10 TEU) also presupposes the ‘equality of citizens’ (Article 9 TEU). These citizens are represented directly at EU level in the European Parliament, even though they do not form part of the same demos. They are also indirectly represented by the Member States within the Council, albeit on the basis of a weighting of states instead of the universal suffrage of the peoples. As emphasised by the Karlsruhe court in its ‘Lisbon’ ruling, the European Parliament is the victim of a major flaw of representativeness: the assembly was indeed elected by universal suffrage, but it does not represent a body politic or a community which is culturally homogeneous enough to form a people which can consent to its governance. Its contribution to the democratic legitimation of the EU will never go beyond that of an accessory to the national parliaments.

The principle of the equality of citizens is also undermined by the composition of the European Parliament, which leads to fundamental inequalities between the different countries as a result of the variety of procedures used to elect MEPs and calculate the number of MEPs per country. In this respect, the relative representativeness of a citizen is inversely proportional to the demographic weight of their country (the number of MEPs per country is calculated in line with the principle of proportional degression), which means that an MEP can represent a vastly different number of citizens depending on their nationality. The huge demographic disparities between the Member States make it very difficult to establish rules for calculating the number of representatives in the European Parliament which would guarantee the fair representative of European citizens of all nationalities.

Two other factors which result in inequality between citizens as a result of their nationality should also be noted. The first of these is the qualified majority rule which turns citizens of a state whose government is in the minority into ‘losers’, given that the weighting of votes also includes a demographic criterion. The second is the issue of net financial contributions to the EU, particularly at a time when the ailing public finances of certain countries are dependent on the financial solidarity of the leading countries, in particular Germany, under the Treaty establishing the European Stability Mechanism (ESM), which was signed in February 2012.

5)Political responsibility?

It goes without saying that the accountability of power to the people or an assembly representing the people is a key criterion for ‘representative’ democracy. It is political accountability, enforced by the power of electoral sanctions, which guarantees the scrutiny of representatives and hence the law by citizens. Given that the European system of governance is a polycentric network of powers, how can we identify who holds the power when there is no central point within the network? At EU level, the political accountability of the Commission to the European Parliament is manifestly unrealistic due to the permanent consensus imposed by the major political groups within this assembly. This accountability is also hampered by the rules on admissibility and votes of no confidence, presuming that one day the Commission might find itself in the extraordinary position of being suddenly faced with political opposition from a qualified parliamentary majority.

The independence of the European Commission, which is guaranteed by the Treaty, places it in opposition to the figure of a representative government formed on the basis of democratic elections, accountable to a parliamentary assembly and representing and acting on behalf of a sovereign people. Political responsibility is a form of dependence between a people and its representatives. It is impossible to be independent and dependent at the same time. The Commission is a hybrid entity, invested with the prominent role of acting ‘in the general interest of the Union’, holding a monopoly of legislative initiative and controlling the decision-making process right the way through to implementing acts and the EU budget. Despite the existence on paper of traditional parliamentary mechanisms (inauguration, votes of censure, procedures for informing parliament), it undoubtedly has much more independent technocratic authority that politically responsible political power. In actual fact, it is the effectively unassailable European Commission which largely controls the ‘political’ and legislative agenda; its actions are only checked to a very small extent by parliamentary or media information, monitoring and interrogation mechanisms.

It is of course the case that the national governments continue to be politically accountable to their respective parliaments, and must defend the details of their European policies whenever asked to do so. Yet this ignores the major problems involved in blocking a draft European legislative act, and in particular the strict requirement imposed by the Commission on the national budgets within the framework of the European Semester, all the more so because it is impossible to identify the competent entities within the governance system in view of the existence of informal trilogues and the 3000 or so comitology committees subject to no form of authority, whether discretionary or exclusive. The public and private stakeholders in the opaque negotiations which result in the drafting of a given directive or regulation can be entirely hidden from view. Furthermore, and assuming that the national parliaments are aware of all these formal and informal negotiations and debates, the government in question can quite easily be part of a qualified minority in the Council, and the representatives of the nation cannot object since this is merely the strict application of the Treaty.

The chain of legislation which links a sovereign people to European decisions is so long and torturous that it is effectively too tenuous to confer any democratic legitimacy on the European authority which produces legislative acts. The path from the election of a member of a national parliament is so long that by the time a European legislative act is adopted the source of popular consent to the law has long been lost in procedural meanders, the opacity of comitology negotiations, trilogues and co-decision. The exercise of any control and the enforcement of political accountability is thus unfeasible and in practice out of the grasp of any government, even though the latter is theoretically a co-drafter of European legislation within the Council.

6)Transparency of the European regime?

Transparency is a clear prerequisite for political responsibility. As a basic principle, the functioning of a democratic government must be transparent enough that it can be understood by as many people as possible. Citizens must understand what power is held by whom, how and for what purpose. Overly complex procedures and an opaque decision-making process prevent them from identifying the parties who hold responsibility and exercising adequate control, and from giving their yes or no votes to policies or legislation wherever necessary. The Treaty of Lisbon made debates and votes on legislative acts public within both the Council and the European Parliament, and the transparency of the EU’s workings has theoretically improved as a result. Yet this is only the tip of the iceberg. For every 50 or so legal acts voted on each year in a manner transparent enough to be understood by anyone brave enough to follow the work of the Council and the European Parliament, there are over 2 500 implementing acts, 500 of which are in fact laws proper, which pass via the torturous and mysterious paths of comitology. The formidable opaqueness of the composition, agendas and debates of these committees are compounded by the complexity of negotiating procedures which are almost incomprehensible to everyone except a minute number of high-ranking European officials who deal with comitology on a daily basis, which means that political influence based on universal suffrage is lost, and influence is instead based on technical competence.

More generally speaking, it is the workings of the European institutional system, its relations with the national legal systems and familiarity with its stakeholders and their roles which are quite simply beyond the comprehension of the citizens. A well-educated citizen can understand at a glance the general workings of the state institutions in his country and identify the people who hold political responsibility and the ways in which they can be elected or removed from power. As a European citizen, however, the same person will be plunged into a fog whose opaqueness is intensified by the fact that European institutional and legislative activities, despite their boasts of ‘transparency’, are almost entirely resistant to opposing political debate.

7)Constitutional neutrality?

In order to maintain ‘equality between citizens’ and prevent the legislative process taking an a priori position in favour of or in opposition to any particular group, a constitution must remain a legal framework which lays down rights and values and which establishes and organises the functioning of the public powers. It must not decide in advance upon policies which are matters of law and budgets adopted by the reigning majority and always subject to revision by a future majority. The programmatic nature of the Treaties changes everything: they use economic and monetary guidelines to place very clear limits on the EU and its signatory states, with the aim of abolishing all barriers and obstacles to trade via legal and economic integration in order to implement the four freedoms of movement needed for the completion of the single market, the gradual opening up of global markets, monetary deflation and budgetary strictness. Similarly, and taking the example of environmental issues, the Treaties lay down the objective of the ‘fight against climate change’. Questions which are or could therefore be a subject for serious debate in any democracy are therefore decided in advance in the immovable edifice of the European constitution. Regardless of individual opinions and the decisions which must ultimately be made, the possible paths to be taken in the areas of trade, money, budget and climate are not neutral: they are the result of economic, political and social choices which should be debated and revised using democratic procedures, not via a constitution.

Main conclusions on the structural democratic deficit

Two major separations which are disastrous for the European democracies

- The separation of power and authority. On the one hand we have the Member States with the political, administrative and budgetary tools for action; on the other hand, we have the European Union which is an authority independent of the Member States and which makes laws with imperative force and immediate effect to which they have agreed in advance and which they are responsible for enforcing by virtue of their own constitutions. This separation breaks down all political responsibility: the representative governments are each accountable to their own people but no longer have any authority, whereas the supranational powers have authority but are not accountable to a people. The reason for this political irresponsibility is that the EU is not by its very nature a political sovereign or the government of a state. The Commission, the Court of Justice and the Central Bank, which are the driving forces behind the EU, are authorities which are entirely independent of the Member States and which do no more nor less than to implement the Treaties negotiated and ratified by the latter with a view to the legal and commercial unification of the European continent. This gradual breakdown of responsibility in the political arena is only the public side of what is happening in the private sphere, where individual responsibility and virtue are losing ground to a culture of individual rights.

- The separation of law and politics. The people and their representatives have effectively been deprived of the sum and substance of legislative power, which was previously exercised by the sovereign states. This loss of power by sovereign peoples has had the historically unprecedented effect of depriving the law of its political foundations. The link between the popular majority will and the law has been guaranteed to date by the mechanisms of representative democracy, albeit imperfectly, but it has now been broken down.

2. From a crisis of legitimacy and identity to civil disobedience ?

This regime of the European Union has been freely acknowledged by Jacque Delors, the former Commission President, to be a ‘soft enlightened despotism’, and President Barroso has called it a ‘non-imperial empire’. Is this really what the European peoples, or their representatives, gave their legal consent to when ratifying the Treaties? The perception of legitimate power is eminently subjective and only meaningful in relation to a specific community of people. It presupposes a certain degree of homogeneity and a feeling of belonging among the individuals in the community in question, with the latter functioning as both a geographical location and an historical and cultural heritage. In a living democracy, the national framework is the civilised arena for the clash of political, economic, social and cultural demands. For around two centuries, this process has been regulated in all of the Member States by democratic procedures which are transparent and open to everyone, whether as voters, citizens or members of trade unions or associations etc. As the focal point of the ‘will of the people’, the national framework is where elected governments, parliaments and presidents have hitherto arbitrated between these demands, on the basis of the idea that they are doing so on behalf of the common good and the national interest, in accordance with the constitution and under the scrutiny of the citizens. This process of arbitration resulted in winners and losers, but it was implemented by people who embodied an authority which was commonly regarded as legitimate.

Why then should we vote for and obey representatives of assemblies which have been effectively deprived of their purpose: lawmaking, voting through budgets and scrutinising the executive? The monopoly of state power used in Europe for the enforcement of laws and policies which are likely to be increasingly regarded as unfair due to their lack of legitimacy could soon be viewed as unlawful violence.

Against a backdrop of looming recession, social crisis and a crisis of collective identity, early indications can easily be seen already of this hypothetical mass popular opposition to the ruling elite, although it is impossible to predict the nature and extent of any reaction. Regardless of the form and nature of a regime, obedience by its subjects or citizens remains something of a mystery: as soon as the people no longer really want to obey, even dictatorships collapse.

Europeans are currently living through a silent, far-reaching and perhaps irreversible transformation of their democratic institutions and the way in which laws are made. The European Union’s current architecture means that it embodies a renouncement of Europe as political will and civilisation, and a renouncement of sovereignty and hence democracy. Is this the end result of the cycle of political democracy predicted by Platon and Tocqueville? It is at any rate hard not to agree with Jurgen Habermas’ description of the EU as ‘a paragon of post-democratic autocracy’.